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Opinion Contributor

EPA's fuel folly

The author says EPA’s RFS overestimates are part of an intentional strategy. | John Shinkle/POLITICO

By REP. JIM SENSENBRENNER | 2/24/13 9:06 PM EST

What has been termed the Environmental Protection Agency’s “Phantom Fuel Requirement” is an aptly named rule that epitomizes the mind-set of an agency that has put itself above the law. Hiding behind complexity and its self-assigned moral authority, EPA increasingly subjugates the views of the public, Congress and the courts to its own policy determinations.

In 2005 and 2007, Congress twice amended the Clean Air Act to establish a renewable fuel standard. Under the RFS, Congress required that our fuel supply contain increasing amounts of renewable fuels.

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The Phantom Fuel Requirement relates specifically to a mandate within the RFS to use cellulosic biofuels. Under the mandate, refiners, blenders and importers must purchase the prescribed amount of cellulosic biofuels or pay a fine.

The RFS established ambitious goals for cellulosic biofuels but charged EPA with reducing the requirement if production was in fact lower than the mandate.

The intent was for EPA to reduce the required level of cellulosic biofuels to the amount that was actually likely to be produced. Congress wanted to avoid penalizing refiners for failing to buy fuel that did not exist.

The RFS greatly overestimated the industry’s ability to produce cellulosic biofuels. As a result, EPA has had to reduce the required level every year since the mandate took effect.

In 2010, the first year of the mandate, EPA projected that 5 million gallons of cellulosic biofuels would be available. In fact, there were none. In 2011, EPA increased the mandate to 6.5 million gallons. Again, the actual amount available was zero. Undeterred, in 2012, EPA increased the required amount to 8.5 million gallons. The actual available amount was 25,000 gallons.

Since it is impossible to comply with the mandate to use this phantom fuel, EPA is effectively taxing the industry. This tax is passed to consumers in the form of higher gas prices.

EPA’s overestimates are part of an intentional strategy. On July 19, 2012, I wrote to EPA and argued that the agency had “usurped Congress’ policymaking authority in order to satisfy its own goals.” In its response, EPA wrote, “the standard that we set helps drive the production of volumes that will be made available.”